Trecarrell House Ltd v Rouncefield  EWCA Civ 760
30th June 2020
The Court of Appeal held that the failure to serve a gas safety certificate on a tenant before the tenant took up occupation of the demised premises was not fatal to the landlord’s later ability to serve a section 21 notice.
The landlord granted a tenancy to the tenant in February 2017 but did not serve the tenant with a copy of the gas safety certificate, dated 31 January 2017, until November 2017 and nor did the landlord display a copy of that certificate in the demised premises. The tenant argued at the trial of the landlord’s claim for possession that the landlord’s section 21 notice, served in May 2018, was invalid for failure to comply with the requirements of the Assured Shorthold Tenancy Notices and Prescribed Requirements (England) Regulations 2015 reg.2(1), which, it was argued, required the gas safety certificate to be served before the tenant took up occupation of the premises in order for the landlord to validly serve a section 21 notice.
Did the failure to serve a gas safety certificate before the tenant took up occupation of the premises forever render the landlord unable to validly serve a section 21 notice?
At first instance, the County Court at Truro held that, following the reasoning of HHJ Luba QC in Caridon Property Limited v Shooltz (2 February 2018), the Assured Shorthold Tenancy Notices and Prescribed Requirements (England) Regulations 2015 could only be read so as to make the requirement to serve a gas safety certificate before the tenant takes up occupation of the premises a prescribed requirement, rendering the landlord forever unable to validly serve a section 21 notice.
Decision [on appeal]
In what was, it is fair to say, a pretty strained reading of the Regulations, the Court of Appeal found that the Regulations did not mean that a landlord who had failed to serve a gas safety certificate on the tenant at the outset was permanently deprived of the right to bring the tenancy to an end by service of a section 21 notice.
The Court of Appeal pointed out the disparity in treatment between the failure to serve a certificate at the outset, and the failure to serve a certificate within 28 days of a later gas safety check being carried out. The latter could be remedied, but on the tenant’s construction of the Regulations, the former could not. Further, the statutory inhibition on the right to serve a section 21 notice was not the primary sanction for breach of the gas safety requirements – such a breach is punishable as a criminal offence under s.33 of the Health and Safety at Work etc. Act 1974. In addition, all other breaches of the prescribed requirements are remediable in some way. For example, a failure to protect the deposit can be remedied by repaying the deposit to the tenant.
Given the purpose of section 21, which is to give a landlord a “no fault” right to possession of their property, the landlord’s construction of the Regulations was preferred and it was held that the failure to serve a gas safety certificate at the outset of the tenancy could be remedied in order to allow the landlord to serve a section 21 notice.
This will be a welcome decision for landlords, who have not received much good news recently. Many county courts had been following the decision in Caridon Property Limited v Shooltz and landlords had found themselves dealing with tenants who were very difficult to remove, at least not without a lengthy and expensive argument about whether the tenant was in breach of the terms of the tenancy. For so long as section 21 of the Housing Act 1988 remains in force (and it may soon be repealed) landlords are now able to rely on a section 21 notice even though they did not serve a gas safety certificate at the start of the tenancy so long as i) the landlord was actually in possession of a current a gas safety check when the tenant entered into occupation; and ii) the landlord serves copies of the gas safety certificates on the tenant before serving a section 21 notice.
By Katie Gray